Category Archives: Medical Marijuana Laws

Head Spinning from Marijuana Laws?

If you are experiencing a “Purple Haze” from the variety of state marijuana laws – at  least 29 states and counting — and trying to determine whether your employer must accommodate medical marijuana use, then we can help.

One of our best resources for evolving labor and employment laws, Wolters Kluwer, has just published a concise overview of the law in this area: “Smoky Lines: Whether to accommodate employees’ use of medicinal marijuana may now depend on state law.”

It notes important, safety-sensitive jobs in which accommodation is not required under federal law, covering employers in the trucking, aviation, maritime, railroad, transit and pipeline industries.  In addition, federal contractors subject to the Drug-Free Workplace Act must provide a drug-free workplace.

The rules get hazier at the state level, with only one state (Nevada) expressly requiring accommodation of medical marijuana.  In contrast, 16 states (including Pennsylvania and New Jersey) specifically provide that employers are not required to “accommodate” the use of medical marijuana during work hours or on work premises. Courts in some states, including Massachusetts, have held recently that employers do indeed have a duty to accommodate medical marijuana use, even if the statute is not clear on the point.

Suffice it to say that the law continues to evolve.  If you would like the full Wolters Kluwer report, please respond to me.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Legalize It.

Peter Tosh was before his time.

Almost 40 years after his hit reggae song and album, the smoke is clearing and it looks like cannabis soon will be legal, in some form, in most states (the majority of the US population now lives in states that permit medical marijuana). In July, New York became the 22nd state to allow medical marijuana, in addition to two states – Colorado and Washington – that have approved its recreational use. And this past Sunday, the New York Times published an editorial and a slew of stories in favor of “ending prohibition” against marijuana nationwide.

You are probably saying to yourself, “Dude, all this evolution of sentiment and law creates a buzz of new issues for the workplace!”

Exactly. In addition to learning the law of the state(s) applicable to your workplace, employers and employees should review and anticipate three key issues: (1) whether to revise their drug use policies that ban marijuana, (2) whether to include marijuana in standard drug testing, and (3) what to do with employees with disabilities who are legally prescribed marijuana. Some state laws address these issues, some do not. And, despite the proliferation of state laws legalizing marijuana use for some purposes, federal law still makes marijuana use and possession a crime, and expressly prohibits its use in some occupations.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Complimentary Employment Law Seminar for HR Professionals

Click here to register.

Flaster/Greenberg attorneys Adam Gersh, Kenneth Gilberg and I have been tapped by Primepoint LLC, a payroll processing and HR information system technology company, to present a complimentary seminar for human resources professionals offering legal perspectives on the recent developments in labor and employment law.

The seminar, entitled “Employment Law Swiss Army Style: Your All-in-One Pocket Guide to the Latest, Hottest L&E Issues,” will discuss a variety of decisions that impact HR management and operation. Topics include: iPad = iLiable? Personal devices and overtime pay; Up in Smoke – Marijuana, e-cigarettes and other incendiary topics in the workplace; Same-sex marriage, sexual orientation and the Supreme Court; What’s new in medical leaves and disability law; Social media – latest cases on acceptable policies; and What you need to know about expanded workers rights and employer personnel policies in relation to the NLRB decisions impacting union and non-union employers.

The complimentary seminar will be held on Thursday, June 26 at 8:00 a.m. at Primepoint’s headquarters located at 2 Springside Road in Mt. Holly, New Jersey. Qualified human resources professionals will receive up to three (3) credit hours for recertification. For more information, or to register, click here.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Clearing the smoke – is using medical marijuana a terminable offense?

As more states adopt medical marijuana laws, employers with anti-drug policies that expressly prohibit the use of marijuana face a dilemma: can they discipline or fire employees who test positive due to their use of medical marijuana?

The answer in Casias v. Wal-Mart Stores Inc., decided September 19, might surprise you. In Casias, the employee sued under the Michigan Medical Marijuana Act after he tested positive for marijuana that he had taken pursuant to a prescription and was fired by Wal-Mart for violation of its policy against marijuana use. The U.S. Court of Appeals for the Sixth Circuit rejected the employee’s claim, noting that the Michigan Medical Marijuana Act does not cover or restrict employment decisions. Courts in California, Montana and Washington have similarly found that their states’ medical marijuana laws do not govern private employment actions.

So, is that the end of the story? Can employers fire employees who test positive for medically prescribed marijuana?

Dude, get real. The Casias case did not involve a claim of disability discrimination under state or federal law, but in those states where medical marijuana use is legal and has been prescribed to treat a medical condition, employers that fire or discipline their employees for taking legally prescribed medical marijuana can expect disability discrimination claims, reasonable accommodation claims, and possibly other causes of action relating to employee privacy. A related example of this is Fowler v. Westminster College, a federal decision on September 17 in Utah, in which the plaintiff, a recovering painkiller addict, was awarded $300,000 under the ADA after he was terminated because a urine test detected an “excessive amount” of prescription drugs.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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